Durham Right to Farm Ordinance sent back to the drawing board

DURHAM -- After being told more work needs to be done, the Agriculture Commission is headed back to the drawing board to whip up a new Right to Farm Ordinance.

The commission revised its original Right to Farm Ordinance following the concerns raised by First Selectwoman Laura Francis and members of the community at a public hearing in March.

In addition to changing some of its language, Agriculture Commission Chairman Warren Herzig also, subsequently, met with the town counsel. It was at that meeting that Town Attorney Robert Poliner suggested the commission consider an alternative option, which involved proposing a resolution instead of an ordinance.

"The rationale behind that is because an ordinance usually carries with it some type of enforcement mechanism, some type of language that would comply [with] statutes," Francis said at a Board of Selectmen meeting Monday. "Town counsel offered an alternative to that because the proposal did lack that element of enforcement possibilities."

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As a result, Poliner drafted a resolution, one in which commission members expressed their disappointment with.

Herzig said he expected the commission's proposed ordinance to be "tweaked," addressing the legality of the document. "I did not expect the complete rewrite that took away a lot of what I thought was the meat part of what we had as an ordinance," he said.

Even Selectman Steve Levy said it was easy to see right way that a lot of the original substance was not there, although he didn't have handy for review.

"I thought we felt as a board, that the ordinance was a good document so I'm kind of surprised to see it so modified," Levy said.

Commission members did not see the drafted resolution as a document that implied that the town supports farming.

The purpose of the proposed ordinance, Herzig explained, was to set a policy that the town supports agriculture and supports it provided that farmers follow generally accepted agricultural practices.

"Ours, I see it as more proactive, taking a stance as to this is how we do agriculture," he said.

The resolution, however, is a document that says "we'll work with you guys and try to balance both sides" -- something Herzig did not support. He said he would prefer the ordinance be "proactive and specific rather than just general."

But Poliner said the ordinance had one part that "caused raised eyebrows."

Some language in the ordinance appeared to make agriculture a superior activity, inferring that "whatever impact" made to neighboring properties would be okay as long as generally accepted practices were being used, he said.

In terms of litigation, mediation and resolution, Francis wondered if such an ordinance would put the town in a "tough situation." Believing that it would, Francis questioned if a resolution would alleviate that risk.

With such language in an ordinance, she wasn't sure what would happen if a neighbor complained about the odor coming from a farm.

"Is our answer, well it's in our ordinance, it says farms can smell?" she asked.

"As long as they're not a nuisance, that's in that ordinance," commissioner Fred Mastele replied.

Francis pointed out that some issues may require a "bigger buffer zone."

In such situations, Herzig said the commission would work with the appropriate town agencies and the farmer to resolve the conflict.

"When it's all said and done and people still aren't satisfied, they can call Hartford and request the commissioner of agriculture to come down here," he said, noting that the commissioner could be called with or without a local Right to Farm ordinance.

Unlike the resolution, which seemed more like a mission statement to commissioners, Mastele said the proposed ordinance was a statement of agriculture.

It informs outsiders who travel to Durham or those interested in developing a farm in town that Durham supports agricultural activities, he said.

"Am I hearing that a resolution is not enough?" Francis inquired.

Commissioners said it didn't matter if the town adopted an ordinance, a resolution or a declaration. The content, they said, is what matters.

Commissioners felt the ordinance was aligned with the state statutes, and also deemed it enforceable.

"There is a form of enforcement built into the ordinance," commissioner Joseph Pasquale said. It doesn't call out that, but it's in there."

Levy said he thought it was "implicit" in the proposed ordinance that there were enforcement options. "It's all over the place," he added.

Francis emphasized that the ordinance was only in its discussion stages.

"I don't want you in any way, shape or form to confer that we are not trying to do a good thing here," she told the commission.

Poliner suggested the town post the nuisance statute to the town's website and include a message from the commission, to avoid misleading the public.

Commissioner Roger Passavant said he didn't understand how everything got so complicated.

"It's very simplistic," he said. "We're just looking for you guys to put a little teeth in it."

Pasquale pointed out the fact that the ordinance is not about the Agriculture Commission and how it functions, but what the town supports.

Francis agreed that the town should have a statement that recognizes its support of agriculture, but wants to make certain it's done in the right way.

The Board of Selectmen is the body that has to take care of issues dealing with ordinance violations, she said.

Moving forward, Francis said the commission will have to focus on two items-- format--determine if a resolution or ordinance is the way to go-- and wording-- any language that is above and beyond or different than the state statute and what it would impose the board to do.

"After we've decided which path we're going to go [then] some clear direction [will] be given to this board [on] handling it," she said.

Resident Sue White recommended the town add signs that read "We support agriculture," to the town lines. But Selectman John Szewczyk said that might be going a bit too far.